Municipality of Mossel Bay v the Evangelical Lutheran Church (443/12)  ZASCA 64 (24 May 2013)
17 July 2013
Posted by: Author: Charl Geldenhuys
Author: Charl Geldenhuys (TheSAIT)
Parties in the Court
The appellant in this case was the Municipality of Mossel
Bay. There were two respondents involved in the case. The first respondent was
the Evangelical Lutheran Church and the second respondent was the Registar of
The appellant appealed to the court that the Evangelical
Lutheran Church did not use the properties for their specified purposes.
The Evangelical Lutheran Church was the registered owner of
two properties, stand 2002 and stand 2003, in Mossel Bay. The title deed contained
restrictive conditions in favour of the municipality. The conditions for stand
- The property in question shall be used solely
for church or educational purposes, provided that in addition to any church or
school buildings erected on the land, a parsonage or a caretaker’s house may be
- The land shall be used solely for the purpose
set out in (1) above. If at any time it ceases to be used for such purposes, or
is no longer required for such purpose, it shall revert to the counsel without
payment of compensation of any improvements affected on or to the land.”
The conditions for stand 2003 were:
"In the event of the property not
being used for church purposes it shall revert to the counsel, save and except
that in addition to the church one dwelling as a parsonage or a caretaker’s
house may be erected in respect of the property.”
The municipality wanted to retransfer the properties since
they believed that the properties were not being used for the specified
purposes. The allegation made by the municipality was that the properties were
not used and that the church did not attend to the maintenance of the
properties. Further, the municipality also claimed that the properties were in
an unacceptable state due to vandalism.
The church’s defence was that the properties were still and
would continue to be used for church or educational purposes. They would recommence
these activities and repair the damages to the building once they obtained the
adequate financial assistance.
The appeal was upheld with costs. The court found that stand
2002 was not used for the intended purposes and was ordered to take all the
necessary steps to register stand 2002 in the applicants name within 30 days.
The Sherriff of Mossel Bay was authorised to sign any documentation if the
respondent failed to comply. The court further found that stand 2003 was also
not used for the intended purposes and had to take all the necessary steps to
register the property in the applicant’s name. The Sherriff of Mossel Bay was
authorised to sign any documentation if the respondent failed to comply.
The applicant was to bear all the costs of
registration of transferring stand 2002 and 2003 into its name.
For the full court
case, please click here.